Reid v. Reid, 79-2294
| Decision Date | 08 April 1981 |
| Docket Number | No. 79-2294,79-2294 |
| Citation | 396 So.2d 818 |
| Parties | Teresa C. REID, Appellant, v. James D. REID, Appellee. |
| Court | Florida District Court of Appeals |
James P. O'Flarity of Law Offices of James P. O'Flarity, Palm Beach, for appellant.
Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for appellee.
We have for review two orders of the trial court disposing of a petition for modification of alimony and child support.
The first order granted the former husband's motion to dismiss that aspect of the petition seeking an extension of rehabilitative alimony and denied with prejudice the former wife's motion to amend the petition. While both parties on appeal have argued to some extent the merits of wife's position with regard to a change in circumstances we note that disposition was in the form of dismissal so that the merits, never having been reached by the trial court, are not properly before us for consideration.
Our concern, then, is whether the dismissal without leave to amend is supported by the pleadings.
Before reaching that question we respond to appellee's preliminary contention that appeal of the order of dismissal, filed more than thirty days after rendition of the order, is untimely. The petition for modification seeks two forms of relief. Both are predicated upon the same facts and circumstances and are set out in a single count. No final judgment was entered on the order of dismissal. Under these circumstances the rule to be applied is that an order dismissing with prejudice, to be an appealable final order, must relate to a distinct and separate cause of action which is not interdependent with other counts. See Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975). Such was not the case here and we therefore conclude that the order was interlocutory, subject to review on plenary appeal from final disposition of the cause.
Rule 1.190 of the Florida Rules of Civil Procedure requires that leave to amend be freely given when justice so requires. It is clearly an abuse of discretion to refuse leave to amend except under very limited circumstances. See, e. g., Town of Micanopy v. Connell, 304 So.2d 478 (Fla. 1st DCA 1974). Appellant should have been permitted to amend her petition.
There has been a suggestion in the briefs that dismissal may have been based upon lack of jurisdiction. Several cases have established that the trial court has jurisdiction, with no necessity of a specific reservation of jurisdiction, to consider a petition to modify an award of rehabilitative alimony filed, as here, before the period for payment of rehabilitative alimony expires. Cantor v. Cantor, 306 So.2d 596 (Fla. 2d DCA 1975); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975); Hernandez v. Hernandez, 325 So.2d 483 (Fla. 3d DCA 1976).
While not directly in issue for our determination, we deem it expedient to treat a related argument espoused by appellee in order to forestall the possibility of a subsequent appeal based on that position. It is appellee's contention that the petition must contain an allegation of increased need in order to support an application for an extension of alimony. We reject that contention on the basis of both logic and precedent. It stands to reason that termination of rehabilitative alimony payments at the expiration of the period originally established for them to be made, in and of itself constitutes some "change in circumstances." Furthermore, the burden on the movant is to show that "notwithstanding reasonable and diligent efforts on petitioner's part, substantial rehabilitation has not indeed occurred," Lee v. Lee, supra 309 So.2d at 27, rather than a substantial change in circumstances.
The second order appealed from denies the former wife's application for increased child support. After certain preliminary findings the order concludes:
In view of the fact that the Husband has paid more than he was required leads the Court to believe that if he is left alone, he will do more than would be required by the Court.
The Court finds no basis in fact for the Wife's Petition for Modification.
This language, and the tenor of the entire order, suggests to this Court that a change of circumstances was found but that technically the children had no increased needs, because some of those needs were being...
To continue reading
Request your trial